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Misconduct leads to removal of juror

Federal judge declines mistrial motion in opioid lawsuit

CLEVELAND — A federal judge Monday declined to declare a mistrial in the opioid crisis responsibility trial filed against several pharmacies by Trumbull and Lake counties.

But a juror was thrown off the jury for the ongoing trial after she conducted an investigation on her own in regards to the testimony of one of the trial’s witnesses and copied her research results to other members of the jury.

Defense attorneys sought to have the opioid lawsuit dismissed on the grounds the actions of a woman referred to as “Juror No. 4,” who on Thursday conducted research showing people can obtain Narcan on their own without paying for the opioid-overdose reversal drug.

The former juror did the research in response to testimony from a witness employed by Walgreens stating customers have to pay for Narcan unless it is covered by insurance.

During questioning about the incident, Juror No. 4 said she wanted ” … everyone to be very clear about this, that you can get Narcan for free. I didn’t want people to think they had to pay for a Narcan kit.”

A plaintiff’s attorney noted it could be used in his favor.

A Giant Eagle attorney argued the jury had been incurably tainted and immediately moved for a mistrial.

While Juror No. 4 was removed, 13 jurors who were exposed to the information provided by the juror remain on the jury, wrote attorney Robert M. Barnes, representing Giant Eagle.

Also seeking a mistrial were the attorneys for Walgreens and CVS pharmacies.

Plaintiff Attorney Peter H. Weinberger argued if no prejudicial effect occurred with the jury, then a mistrial would be an immense waste of resources.

Weinberger argued the availability of Narcan at no cost has no impact on the questions of whether the defendants caused a public nuisance in Lake and Trumbull counties with their prescription-filling practices.

Juror No. 4 told other jurors Narcan could be obtained for free from a project called Project Dawn.

Judge Dan Aaron Polster on Monday questioned each of the remaining jurors whether the information they heard and read from the former juror or any other information they might have heard tainted their ability to be fair and impartial in the deliberation of the case.

Each juror said he or she can remain impartial and judge the case solely based on the information they hear from the witness stand.

Later, after each juror individually was interviewed, the trial continued.

A video of a deposition of attorney Mark R. Vernazza, representing CVS Pharmacy Inc., was played before the remaining members of the jury.

Plaintiff Attorney Eric Kennedy was seeking to prove through his questioning the CVS Distribution Center in Indiana did not have a formal Suspicious Ordering Monitoring Process in its regulations between 2007 and 2010. During this period, the U.S. Drug Enforcement Agency repeatedly requested CVS distribution to provide it with written regulations.

In emails to DEA officials during this three year period, CVS executives noted the regulations were in the process of being written.

CVS has a system in its distribution centers that monitors what and how many drugs are delivered to stores based on their histories. If an individual store’s orders become higher than normal, the distribution center’s “pickers and packers” have the ability to call the pharmacies to ensure the orders are correct.

Although CVS Inc.’s distribution center did not have a formal written Suspicious Ordering Monitoring process, Kennedy said a nonformalized process was being used while the formalized program was being written.

The written policy was not inserted as part of CVS’s Standard Operating Procedures until after the DEA audited a CVS distribution center in 2010, specifically requesting the information.

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